Citation Nr: 9922493
Decision Date: 08/11/99 Archive Date: 08/24/99
DOCKET NO. 94-32 029 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina
THE ISSUES
Entitlement to service connection for eye, genitourinary
(GU), and endocrine system disorders (other than non-
malignant thyroid nodular disease for which service
connection has already been established).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Richard V. Chamberlain, Counsel
INTRODUCTION
The veteran had active service from March 1951 to February
1955.
This appeal comes to the Board of Veterans' Appeals (Board)
from August 1991 and later RO decisions that denied service
connection for eye, GU, and endocrine system disorders. In
December 1996, the Board remanded the case to the RO for
additional development. The case was returned to the Board
in 1999.
The August 1991 RO rating decision also denied service
connection for post-traumatic stress disorder (PTSD). The
veteran was notified of this determination and appealed. A
November 1993 RO rating decision granted service connection
for PTSD and assigned a 30 percent rating from July 1990, a
total rating under 38 C.F.R. § 4.29 (1998) from May to August
1993, and resumed the 30 percent rating from August 1993. In
September 1994, the veteran disagreed with the evaluation
assigned for the PTSD. In November 1994, the RO sent him a
statement of the case and a VA Form 9 with instructions to
submit this form to complete the appeal on the issue of
entitlement to an increased evaluation for PTSD. The VA Form
9 was not submitted by the veteran and the Board will not
address this matter as there is no timely appeal of it.
38 C.F.R. § 20.302 (1998).
A July 1998 RO rating decision denied entitlement to benefits
under 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) for a
horseshoe retinal tear in the superotemporal region of the
left eye. The veteran was notified of this determination and
appealed. At the hearing in January 1999 he withdrew the
appeal with this issue and it is no longer a matter for
appellate consideration. 38 C.F.R. § 20.204 (1998).
The issues of entitlement to service connection for a GU
disorder and a disorder of the endocrine system will be
addressed in the remand section of this decision.
FINDINGS OF FACT
1. Refractive error of the eyes is not a disability for VA
compensation purposes.
2. There is no competent (medical) evidence linking the
veteran's other eye disorders, found many years after
service, to an incident of service, including exposure to
ionizing radiation, or to a service-connected disability.
CONCLUSION OF LAW
The claim for service connection for an eye disorder is not
well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The threshold question to be answered in this case is whether
the veteran has presented evidence of a well-grounded claim
for service connection for an eye disorder; that is, evidence
which shows that the claim is plausible, meritorious on its
own, or capable of substantiation. 38 U.S.C.A. § 5107(a)
(West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). If
he has not presented such a claim, the appeal must, as a
matter of law, be denied, and there is no duty on the VA to
assist him further in the development of the claim. Murphy
at 81. "The United States Court of Appeals for Veterans
Claims (known as the United States Court of Veterans Appeals
prior to March 1, 1999) (hereinafter, "the Court")" has
also stated that a claim must be accompanied by supporting
evidence; an allegation is not enough. Tirpak v. Derwinski,
2 Vet. App. 609 (1992). In a claim of service connection,
this generally means that evidence must be presented which in
some fashion links a current disability to a period of
military service, or as secondary to a disability which has
already been service-connected. 38 U.S.C.A. § 1110 (West
1991); 38 C.F.R. §§ 3.303, 3.310 (1998); Rabideau v.
Derwinski, 2 Vet. App. 141, 143 (1992). "In order for a
claim to be well-grounded, there must be competent evidence
of current disability (a medical diagnosis) ...; of
incurrence or aggravation of a disease or injury in service
(lay or medical testimony), ...; and of a nexus between the
inservice injury or disease and the current disability
(medical evidence)." Caluza v. Brown, 7 Vet. App. 498
(1995).
Service connection may be granted for a disease based on
exposure to ionizing radiation when there is medical evidence
linking it to such incident. Combee v. Brown, 34 F. 3d 1039
(Fed. Cir. 1994). In the absence of competent medical
evidence linking a disability to service, diseases specific
to radiation-exposed veterans, such as various forms of
cancers, listed under 38 C.F.R. § 3.309(d) (1998) will be
presumed to have been incurred in active service if the
veteran participated in a "radiation risk activity" such as
onsite participation in an atmospheric nuclear test.
38 C.F.R. § 3.309(d)(3)(ii). Other "radiogenic" diseases,
such as any form of cancer, listed under 38 C.F.R.
§ 3.311(b)(2), as amended by 63 Fed. Reg. 50993-50995 (Sept.
24, 1998) found 5 years or more after service in an ionizing
radiation exposed veteran may be service-connected if the VA
Under Secretary for Benefits determines that they are related
to ionizing radiation exposure while in service or if they
are otherwise linked medically to ionizing radiation exposure
while in service. For the purposes of "radiogenic"
diseases found in 38 C.F.R. § 3.311(b)(2), bone cancer must
become manifest within 30 years after exposure; leukemia may
become manifest at any time after exposure; and posterior
subcapsular cataracts must become manifest 6 months or more
after exposure. 38 C.F.R. § 3.311(b)(5).
A review of the record shows that service connection is in
effect for PTSD, rated 30 percent; and for nonmalignant
thyroid nodular disease, rated 10 percent. The combined
rating for the service-connected disabilities is 40 percent.
Service medical records show that the veteran was prescribed
glasses for a refractive error of the eyes. This condition
is not a disability for VA compensation purposes. 38 C.F.R.
§ 3.303(c). No other eye condition was shown in these
records.
The post-service medical records do not show the presence of
eye disorders, other than refractive error, until many years
after service. The post-service medical evidence was unclear
as to the etiology of these eye disorders and the Board
remanded the case to the RO in December 1996 in order to have
the veteran undergo a VA eye examination to determine the
nature and extent of his eye disabilities and to obtain
opinions as to the etiology of any eye conditions found. The
veteran underwent the requested VA eye examination in August
1997. The examiner noted a history of corneal degeneration,
but was not able to detect any evidence of this condition at
the time of the examination. Floaters of the eyes of a
benign nature were noted, mild 1+ nuclear sclerosing
cataracts of both eyes, and peripheral visual field
constriction in a concentric fashion according to
confrontation visual fields, possibly due to a pituitary
tumor, were also noted. He was recommended for visual field
testing and in August 1997 he underwent further eye
evaluation and Goldmann visual field testing. A horseshoe
retinal tear in the superotemporal region of the left eye was
found on evaluation, and the visual field testing indicated
that his peripheral vision had likely suffered in a
concentric fashion likely due to his pituitary tumor; his
superior visual field loss was likely related to ptosis.
In a November 1997 addendum to the August 1997 VA eye
examinations, the examiner who conducted the examinations
noted that the evidence in the veteran's claims folders was
reviewed and that on closer inspection it was concluded that
there was no evidence of corneal pathology. With regard to
ocular status, the examiner noted that the horseshoe retinal
tear had been adequately treated and opined that the veteran
did not have any significant loss of peripheral vision or any
corneal damage due to radiation exposure. The examiner also
concluded that there was no evidence of any thyroid related
problem associated with any visual field defect. It was
noted that it was most likely that the veteran's Goldmann
visual fields were completely normal and only restricted by
ptosis (drooping of the upper eyelid). The examiner doubted
that the veteran had any visual field loss related to
pituitary microadenoma, and noted that previous evidence of
corneal damage was apparently related to his soft contact
lens wear.
The above VA examinations of the veteran's eyes do not link
the veteran's current eye problems to an incident of service,
including exposure to ionizing radiation, or to a service-
connected disability. A claim is not well grounded where
there is no medical evidence showing a nexus between a
current disability and service. Caluza, 7 Vet. App. 498.
Some of the evidence indicates that the veteran participated
in Operation IVY in 1952 and that he may have been exposed to
ionizing radiation during this service. The evidence,
however, does not show that he has a disease specific to
radiation exposed veterans listed in 38 C.F.R. § 3.309(d).
The evidence indicates that the veteran has mild 1+ nuclear
sclerosing cataracts of both eyes, and the "radiogenic"
diseases found in 38 C.F.R. § 3.311(b)(2) only provide for
service connection of posterior subcapsular cataracts under
these provisions or cataracts located in another area of the
eyes. Since the veteran doesn't have the specific
"radiogenic" cataracts disease listed in these regulatory
provisions, they do not apply to his cataracts condition.
The veteran testified at hearings in January 1992 to January
1999 to the effect that he had eye problems due to exposure
to ionizing radiation in service, but this lay evidence is
not sufficient to support a claim based on medical causation.
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
In this case, there is no competent (medical) evidence
showing the presence of an eye disorder, other than
refractive error, in service or for many years later, and the
competent evidence does not link any of the veteran's current
eye problems to an incident of service, including exposure to
ionizing radiation, or to a service-connected disability.
Nor are the provisions of 38 C.F.R. §§ 3.309(d) and
3.311(b)(2) favorably applicable to his eye conditions.
Hence, the claim for service connection for an eye disorder
is not plausible, and it is denied as not well grounded.
The Board notes that the RO denied the claim for service
connection for an eye disorder on the merits and finds no
prejudice to the veteran in appellate denial of the claims as
not well grounded. Edenfield v. Brown, 8 Vet. App. 384
(1995).
The veteran is advised that he may reopen the claim for
service connection for an eye disorder at any time by
notifying the RO of such an intention and submitting
supporting evidence. An example of supporting evidence is a
medical report showing the presence of the claimed disorder
with an opinion linking it to an incident of service.
Robinette v. Brown, 8 Vet. App. 69 (1995).
ORDER
The claim for service connection for an eye disorder is
denied as not well grounded.
REMAND
A review of the record shows that the RO has denied service
connection for endocrinologic abnormalities, such as an
adrenal gland condition and pituitary microadenoma, and
related GU conditions, such as hypogonadotrophic
hypogonadism, as well as other GU conditions. The issues
have been classified as entitlement to service connection for
a GU disorder and/or service connection for a disorder of the
endocrine system. The record indicates that both issues are
for appellate consideration, and the issue of entitlement to
service connection for a disorder of the endocrine system has
not been considered since the December 1996 Board remand of
the case to the RO. All the evidence received since then
that is relevant to this issue should be considered, and the
veteran issued a supplemental statement of the case that
includes the issue of entitlement to service connection for a
disorder of the endocrine system. 38 C.F.R. § 19.37 (1998).
The record (March 1988 RO rating decision) indicates that the
RO has conceded the veteran's exposure to ionizing radiation
during Operation IVY in 1952. The report of the veteran's VA
GU examination in August 1997 indicates that he has multiple
endocrine abnormalities related to a prolactin-secreting
pituitary tumor, and the report of his VA examination of the
endocrine system in August 1997 indicates that his pituitary
dysfunction suggests a link to ionizing radiation exposure
while in service. A private medical report dated in April
1998, indicate abnormalities, including dysfunction of the
adrenal and pituitary glands, likely related to exposure to
radiation in service. In the judgment of the Board, this
evidence demonstrates the presence of "radiogenic" diseases
under the provisions of 38 C.F.R. § 3.311(b)(4) (1998). The
RO must therefor adjudicate the claims for service connection
for a GU disorder and a disorder of the endocrine system on
their merits under the provisions of 38 C.F.R. § 3.311(b).
In view of the above, the case is REMANDED to the RO for the
following actions:
1. The RO should request an estimate of
the veteran's radiation exposure in
Operation IVY in 1952 from the Defense
Department.
2. After the above development, the RO
should process the claims under 38 C.F.R.
§ 3.311(b), including the submission of
the veteran's claims folders to the VA
Under Secretary for Benefits for
appropriate opinions.
3. After the above actions and review of
the claims for service connection for GU
and endocrine system disorders by the RO,
and if action remains adverse to the
veteran, an appropriate supplemental
statement of the case should be sent to
him and his representative.
The veteran and his representative should be afforded an
opportunity to respond to the supplemental statement of the
case before the file is returned to the Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
J. E. DAY
Member, Board of Veterans' Appeals